On March 28, the High Court Division of the Bangladesh Supreme Court summarily dismissed a 28 year-old constitutional petition challenging Islam as the state religion. The court said that the petitioners lacked standing to litigate, but it did not hold any hearing at all.[1] Things, however, are not as simple as they might appear. The challenge goes much deeper into the contested identity of the nation itself, and, inevitably, to the core of the judicial role in moral, political, and religious disputes in an ever transitioning or divided society.

Bangladesh’s Independence Constitution (1972) entrenched ‘secularism’ as one of “the high ideals” of the nation. This was a radical shift from the religious vision of Pakistan from which Bangladesh became independent in 1971. The shift is attributable to the framers’ awareness of pre-1971 political abuse of Islam. Not too long after independence, however, Bangladesh fell into a narrow pothole of confrontational and abusive politics. Its first constitutional government was overthrown in a (civil-)military coup in 1975, which led to a prolonged period of military regimes. The first military ruler, General Ziaur Rahman, extra-constitutionally amended the Constitution in 1977 to replace ‘secularism’ as a fundamental state policy principle with ‘absolute trust and faith in the Almighty Allah’. These changes were later approved and legitimized through the Constitution (Fifth Amendment) Act 1979. General Zia’s Islamization project was nudged further ahead by the second military ruler, General Ershad, who managed to formally adopt the Eighth Amendment on June 7, 1988 declaring Islam the state religion.[2] There was no doubt that pure political intention precipitated these moves, but the military rulers defended these state religion amendments by invoking the ‘distinct identity’ of the majority Bengali Muslims.[3]

The abandonment of secularism and the embrace of political Islam by the military regimes were not left unchallenged altogether. Several eminent citizens, civil society organizations, and lawyers united in protests against the complete demolition of the State’s secular identity. They feared discrimination against minorities and women, and in 1988 lodged three challenges against the state-religion provision, article 2A.

The relevant petition, which is the subject matter of this commentary, was made by 15 eminent citizens of the Citizens’ Committee for Resisting Communalism and Autocracy.[4] It should be noted here that, apart from naming Islam the state religion, the Eighth Amendment decentralized the High Court Division into six regional benches, which too was challenged at the same time. This challenge was successful on appeal at the Appellate Division of the Supreme Court.[5]

While the court accepted and decided the challenge to the Eighth Amendment that involved their autonomy, it kept pending all the three challenges to the same amendment that had established the state religion. This probably indicates judicial unwillingness to deal with difficult questions such as Islam’s constitutional position in what is often portrayed as a Muslim majority country. There were, of course, several other political, social, and professional factors that arguably put the state religion challenge in limbo.

After a prolonged absence of constitutionalism, Bangladesh returned to electoral democracy in early 1991. In 2010, the High Court Division in a private litigation invalidated the Fifth Amendment, with the consequence that the removal of secularism by General Zia became ipso facto unconstitutional. A far-reaching limitation of this decision was that the court could not, nor was it empowered to, declare unlawful the state religion clause, but it nevertheless served as a twist in the trajectory of Islam’s constitutional status. In the wake of the Fifth Amendment decision, the petitioners of the state religion challenge renewed their petition on 11 June 2011.[6] They also probably considered the fact that the Awami League government, which secured the secularism principle in 1972, was now in power. Two weeks later, Parliament enacted the Fifteenth Amendment restoring ‘secularism’, but not removing the state religion clause.[7] This led to a sui generis constitutional positioning of ‘secularism’ alongside the ‘state religion’.

Immediately thereafter, the petitioners made a complementary application challenging, in effect, the Fifteenth Amendment’s failure to strike out the state religion when restoring the founding principle of secularism. As such, the concerned petition brought forth a number of complex issues for adjudication.

The first challenge to overcome was Parliament’s conscious juxtaposition of ‘secularism’ and ‘state religion’ that, upon a first blush reading, seems to be internally conflicting.

Second, there was probably an implied wider political acceptance of this contradiction. Beyond the party in government, at least three major political parties[8], including the two that respectively removed ‘secularism’ and introduced ‘state religion’, would probably not sternly oppose the new arrangement.

Third, the Fifteenth Amendment introduced an eternity clause (art. 7B) making certain provisions including the principles of ‘secularism’ and ‘state religion’ unamendable. This undoubtedly would have been of critical importance for the court’s role. What would be the court’s approach to the co-existence of ‘state religion’ and ‘secularism’? Given that both principles had by then been considered part of the unamendable “basic structure” by virtue of the Fifteenth Amendment, would a potential ruling of unconstitutionality of the state religion be irreconcilable with the unamendability clause? Needless to say, these would have been some of the difficult challenges for the court had it chosen to engage with the petition. In short, the revived challenge to the state religion is not quite the same as the original challenge filed in 1988.[9]

Fourth, from a comparative jurisprudence perspective, there seems to be no instance globally of judicial invalidation of any state religion clause.

The court, however, showed initial willingness to hear the challenge. On December 1, 2011, it issued a supplementary rule nisi vis-à-vis the Fifteenth Amendment and appointed a number of amici curiae. Later, pursuant to a request of September 6, 2015, the Chief Justice constituted a larger Bench of three judges, which abruptly dismissed the petition on March 28, 2016, although it was indeed expected to commence a hearing of the challenge.[10] The court reportedly found the petitioners to have no locus standi to bring the challenge. A detailed judgment has not yet become available, but it would not be unfair to critique the court’s rejection of the challenge as somewhat unprincipled and incompatible with its own jurisprudence of abstract judicial review or the public interest litigation.

In addition to the jurisprudential challenges noted above, there was a socio-political environmental problem of an acute nature. The time announced for the hearing of the petition turned out to be extremely delicate and dangerous. Militancy, terrorism, and religious intolerance began to rise sharply. A number of intellectuals and blog-writers had already been killed by extremists because they were atheists. In this backdrop, several religious groups commenced demonstrations against the state religion challenge, condemning it as a deed of atheists and warning that it would trigger disturbances. Another Islamist group ‘requested’ that the court reject the petition and met with the Chief Justice in the morning of the day of the hearing. As a side note, it should be remembered that, in the aftermath of a court ruling banning fatwa in the area of Muslim family law, a religious group reacted violently in February 2001 and five people were killed.[11]

A question remains whether these events influenced in some way the court’s decision. The court certainly did not endorse, nor did it reject, Islam’s constitutional status. It refused to admit the petition challenging the state religion on a technical ground.

Other questions present themselves. To what extent was the court free of its own value judgement? Did the court skirt its jurisdictional inability to deal with a hard issue such as the legality of Islam’s constitutional status? Did the court avoid the matter because of the complication raised by the eternity clause?

Constitutional law enthusiasts will continue to ponder whether or not there was any better alternative to rejecting, summarily and without hearing, the challenge to Islam as the state religion.

[6] By filing an application supplementing the Writ Petition No. 1434 of 1988. The court agreed to hear the petition and issued a rule nisi.

[7] See the Constitution (Fifteenth) Amendment Act 2011, section 4. The amended state religion clause was, however, made more rational. It (art 2A) reads: “The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.”

[8] The Bangladesh Nationalist Party (BNP), the Jatiya Party, and the Jamat-e-Islami Bangladesh.

[9] It is interesting to note that in 2005 the High Court Division in M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, [67] remarked that the insertion of “absolute trust and faith in the Almighty Allah” in the Constitution was destructive of a basic pillar of the Constitution. This observation can be seen to be a tacit acknowledgement of unconstitutionality of the state religion clause.

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